Page:Harvard Law Review Volume 5.djvu/101

85 NEMO TENETUR SEIPSUM P RODE RE. 85 the laws of friendship ; that they will not serve as informers for their brethren." 1 So, in the cases of Collier (1589), Bradston (1614), and Dighton v. Holt (161 5), ante, the same idea appears, that a man ought not " to discover sufficient matter for an In- former to Inform against him on the Statute." Furthermore, in rebelling against this abuse of the canon-law rule, men were obliged to formulate their reasons for objecting to answer the articles of inquisitions, and they naturally used such expressions as that to answer " would draw them in danger of a penal law," " would discover the forfeiture of an obligation," " would bring temporal punishment or loss." They professed to be willing to answer ordinary questions, but not to betray themselves to dis- grace and ruin, especially where the crimes charged were, as a rule, religious offences, and not those which men generally regard as offences against social order. In this way the rule began to be formulated and limited, as applying to the disclosure of forfeitures and penal offences. In the course of the struggle the aid of the civil courts was invoked. The contest as thus fought out and the privilege as finally established had sole reference to the usurpations of the ecclesias- tical courts. But the issue had been so important a one, and men's minds had become so familiar with the idea of this privilege, that it began to be stated in general terms ; and towards the end of the seventeenth century, as we have seen, it found a lodgement in the practice of the Exchequer, of Chancery, and of the other courts. There had never been in the civil courts any complaint based on the same lines, or any demand for such a privilege. The latter jurisdictions seem to have been quite free from any- thing of the sort. But the momentum of this right, wrested from the ecclesiastical courts after a century of continual struggle, fairly carried it over, and fixed it firmly in the common-law practice also. And now what shall we say of this privilege to-day? It had a use once. Has it a use now? There was a demand for it three centuries ago, as a safeguard against an extraordinary kind of oppression, which, like witchcraft, has passed away forever. Is there a demand now? I think that the history of the privilege shows us that in deciding these questions we may discard any sanction which its age would naturally carry. As a bequest of 1 Strype's Whitgift, 331.